That’s What That’swhatshesaid Said

The show did go on — despite a cease-and-desist order arriving an hour before Friday night’s curtain for That’swhatshesaid in Seattle.

Erin Pike’s one-person, one-hour performance incorporates female roles from the most-produced plays of the 2014-15 season, as determined by American Theater magazine. The script was assembled (“written” doesn’t seem like quite the right word here) by Courtney Meaker, who describesThat’swhatshesaid as “a brutal theatrical exercise in isolation. When a female character is left alone with no male protagonists to support, her behaviors gain both chaos and clarity, resulting in a concentrated dose of the modern theater’s intended role for women.”

Rich Smith explains the arc and direction of the play in his review for The Stranger:

“In Act I, [Pike] presents the lines and stage directions written by men. In Act II, she presents the lines and stage directions written by women. Each scene is composed of lines thematically bound by behaviors the culture polices the most in women. We see woman as sex object and temptress. Woman as angel. Woman as angry witch. The girl, the woman-hating woman, the woman who asks questions and apologizes for everything. …Playwrights perpetuate the patriarchy by creating roles for women that reduce them to one version or another of male fantasy or fear, and playhouses make sure those plays have a home. When women actors get these roles, they often find themselves having to work doubly hard to manifest complex characters from these, at times, flatly-written figures, and the toll this takes on womens’ [sic] psyches and bodies is tremendous…. Initially, Pike hams up the performances of the various roles she’s playing, which establishes a tone of humor and lighthearted ribbing. But as she continues to flicker in and out of the lives she’s playing, the demands of the script become increasingly impossible to fulfill.”

One of the plays used in the collage is Joshua Harmon’s Bad Jews, which, coincidentally or not, is the one Smith singled out in his review as a prime example of sexism combined with bad prose. The play’s publisher, Samuel French, sent a cease-and-desist order specifically targeting the unauthorized use of lines from Bad Jews. As it happens French also publishes two other scripts sampled, so it’s a fair guess that one playwright in particular made the complaint, rather than someone in the Samuel French offices in New York working unusually late for a Friday night.

It seems that Pike just went ahead and performed minus the lines from Harmon. A post by arts blogger Howard Sherman challenges the assumption –in evidence in many comments left at The Stranger — that this is a simple case of intellectual property theft. (Also in evidence, a certain amount of knuckle-dragging anti-feminist backlash talk.)

“Now if Pike were simply standing on stage and sequentially reading every bit of dialogue and stage directions involving the female characters from each play,” Sherman writes, “then what’s going on might be perceived as simple appropriation of copyrighted material, though even that’s not remotely a definitive determination. However, even with male roles excised, the sum total of that dialogue and stage directions could amount to seven or eight hours of stage time.” Since That’swhatshesaid is much shorter than that, it’s obvious that “Pike and Meaker had selectively chosen pieces of the various works and woven them into a quilt that yielded commentary on both the specific works, as well as the prevailing attitudes towards women being advanced in American theatre today.”

Which sounds an awful lot like the sort of creative activity and critical engagement that the principle fair use is intended to protect. Sherman, again: “Fair use permits quotations from an original work in reviews and critical pieces about that work, and the same holds true for scholarly works. Fair use also considers whether new work that is in some way drawn from or inspired by an earlier work or works is sufficiently transformative of, and distinct from the original(s) as to constitute a sufficiently original work in and of itself.”

I haven’t seen That’swhatshesaid (and only one of the plays in the American Theater list, come to think of it) so am in no position to say whether it “constitute a sufficiently original work in and of itself.” In any event that seems like a judgment Samuel French can’t make either, and certainly not in a disinterested fashion. Beyond that, to quote Sherman again, there’s “the tricky part about fair use: while there are general guidelines as to what is protected under the fair use provisions, there is no absolute determinant that can be applied in all cases…. [T]hat’s what helps to keep the field of intellectual property law perpetually active.”

The whole situation came to my attention thanks to a Facebook posting by the playwright Richard Byrne, a longtime and off-line friend. He points out that the only way That’swhatshesaid could have “adverse commercial impact on Bad Jews is [by]making an audience member like Bad Jews less. Which is, well, criticism. Not competition.” Quoting him from FB, by permission:

“As a playwright I’m extraordinarily sensitive to issues of copyright and why we organize as a guild. But this particular C&D appears to be not an attempt to assert legitimate author rights and interests and is, instead, an attempt to stifle legitimate critique. And as playwrights, we cannot be on the side of using our copyright to stifle or annul critique. Ever. Because we are only harming ourselves and shrinking the possibilities for our art to make a difference in even more important circumstances.”

Scott McLemee

Scott McLemee writes the weekly column Intellectual Affairs for Inside Higher Ed and is part of the editorial staff for Jacobin magazine.

From 1995 until 2001, he was contributing editor for Lingua Franca. Between 2001 and 2005, he covered scholarship in the humanities as senior writer at The Chronicle of Higher Education. He has served on the board of directors of the National Book Critics Circle and in 2004 received the NBCC's award for excellence in reviewing.

He is willing to write about himself in the third person, if necessary, but tries not to make a habit of it

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